Saturday, December 30, 2006

Goldscheider:What's at stake in Commonwealth v. LaGuerSaturday, December 30, 2006

Next Thursday, a couple of hours before the new governor gets sworn in, the Supreme Judicial Court will hear a challenge to Benjamin LaGuer's 1984 conviction for raping his a 59-year-old neighbor.

James C. Rehnquist, son of the late chief justice, will argue that the commonwealth's failure to turn over a State Police report made the day LaGuer was arrested, showing that four fingerprints on a key piece of evidence were not his, should invalidate the verdict.

This may seem like a technicality. It isn't for two important reasons: 1) Anything that violates our constitutional guarantee to a fair trial is never a technicality. We have a presumption of innocence because every defendant might indeed be innocent. 2) A great deal of evidence, including that fingerprint report, says LaGuer did not commit the crime.

LaGuer became a signature issue in the Massachusetts governor's race when Republican Kerry Healey blanketed the airwaves with two 30-second spots trying to bring Democrat Deval Patrick down by casting LaGuer as a latter day Willie Horton. Patrick had once supported parole and then a DNA test for the inmate.

It would be a sad day if that blitz prejudices the judiciary against LaGuer. Tactics Sandra L. Hautanen, arguing for the Worcester District Attorney, deploys are shockingly dishonest and should frighten anyone who cares about the rule of law and basic fairness. She has rolled out the same playbook DA John J. Conte, whose term in office ends the day before the hearing, has used to defend the conviction for 23 years: First recite the horrendous nature of the crime (which no one disputes), and then make it look like the case against LaGuer was so overwhelming that constitutional niceties about a fair trial are irrelevant.

This tactic is designed to neither get at the truth of who committed this crime, nor ensure procedural integrity. As a result both are subverted. That is not only bad for justice, but undermines our basic values.

The unstated premise behind Hautanen's filings is that the victim's eye witness identification of LaGuer was so strong that it would be politically risky for any judge to overturn the verdict. But a careful review of the record shows that this is just not so. Aside from being kept in the dark about the exculpatory fingerprint report, the jury was unaware that the victim had a long history of mental illness. That is by no means her fault and in no way negates the fact that she was grotesquely violated. But, when taken together with indicators of LaGuer's innocence, such as the fingerprint report and that a man of similar age, height, build and ethnicity, who frequented the building and who had a known history of sexual misconduct, was ignored by the investigating detective, the victim's mental state should raise cautionary flags about the reliability of a cross racial identification that sent LaGuer to prison for life.

LaGuer could have gotten his freedom at his first parole hearing in 1998 had he admitted to the crime. He instead pursued DNA testing in an effort to prove his innocence. After a four-year process which in the end revealed significant problems with the way the evidence was handled, a test LaGuer fought hard to obtain seemed to link him to the crime. Hautanen raises this in her filings as well, even though it has no bearing on the fundamental procedural issues before the court. Worse, she doesn't acknowledge that four highly regarded DNA experts have since studied the evidence chain of custody together with the testing reports and given unambiguous written opinions that the results are unreliable.

The problems with Hautanen's filings go beyond errors of omission and contain instances of blatantly misstating the factual record. Her untruths extend to earlier blood type evidence that has been scientifically discredited, yet she perpetuates unquestionably false arguments.

A prosecutorial strategy that rests on lies, omissions and intimidation should not be tolerated by the courts or by the public. Our liberties are too precious to be sacrificed because of a residue of public opinion from a cynical and ill-informed political campaign. Kerry Healey's lunge for votes was built on and reinforced by calculated efforts by prosecutors to turn justice on its head.

As NECN's Jim Braude said on the air recently, despite the beating he took during the campaign, might Deval Patrick have gotten this one right?

Thursday, December 28, 2006

As the year comes to an end with the passing of several notables in quick succession, I can't help but remember others who passed from the scene this year. Among them was author William Styron, who died on November first. The date happens to have been in the middle of a campaign in which now Governor Elect Deval Patrick was being pilloried for having supported Ben LaGuer's parole bids. In looking through my files this evening I came across this letter.

Much happened in LaGuer's life since that letter was written, including a 2002 DNA test which seemed to place LaGuer at the scene of the rape he steadfastly denies committing. When I started looking into that DNA test I found that it was totally unreliable because, as has since been noted by several highly regarded DNA experts, items from his apartment were improperly mixed with the rest of the evidence.

But that's not the point of this post. Once I started putting the pieces together I contacted people who had supported Ben before that botched DNA test. Styron was among them. I was a little apprehensive about intruding into Styron's life and at the same time curious about the depth of his concerns regarding Ben's plight. Styron not only took my call graciously and lingered to chat, but he expressed genuine curiosity about the case and how it was going. To him it didn't take a huge leap of imagination to entertain the idea that the supposed scientific certainty of a DNA test might be compromised by human frailty. It was a very heartening conversation at a time when it was hard to get people to listen.

Next week LaGuer's case goes before the Supreme Judicial Court on the very day Patrick will shed the "elect" part of his title and be sworn in as governor of the commonwealth. Rediscovering this letter reminded me that Patrick was in very good company when he advocated on Ben's behalf in the run up to his parole dates.

Sunday, December 24, 2006

The first picture here is of Raymond and I at my Uncle's house in New Hampshire. The next photos have me with my mother, my uncle Paul (big guy huh?!), and my youngest first cousins Cole and Haley. Ray is opening a present Cole gave him, adults are trying to hide in the kitchen from the children, and my mother ("Aunty Ann") plays with the kids and opens one of her gifts. We saw some great decorations outside in my old neighborhood, so we stopped to take photos to share with you. Lastly, Ray and I are at home wishing all a very happy holiday season!

Saturday, December 23, 2006

Hi folks. I just posted this OPEN THREAD over at Blue Mass Group. Anyone (with any perspective!) can head over there to join the discussion. If you don't have a BMG account, you might consider opening one. It's easy. I'll also monitor the comments box here at Live, Love & Learn.

As many of you know Ben LaGuer's case is going to oral arguments in the SJC on January 4. For 23 years he has been claiming his innocence of a vicious rape. I have been posting to BMG about the case since last June. The case and the current round of appeals raise many many issues which I plan to get into during the next two weeks. I've also opened accounts on MyDD and Daily Kos. I'll explain in another post why I think it is important that the NetRoots be informed about what's going on.

I'll post another open thread on the topic next week as a lot of people are away from their computers right now. But I'll be checking in pretty regularly over the Christmas weekend so I want to invite anyone who has any questions, comments or perspectives on the case whatsoever to post them. I'll do my best to answer every post whether it has to do with the facts of the case, legal issues it raises, or how the current process has unfolded. The last part has obviously been affected by the politicization of the case during the governor's race. If you are not familiar with the case, visit the Web site I maintain at www.BenLaGuer.com. In the meantime, please use the OPEN THREAD to join the discussion.

Wednesday, December 20, 2006

Co-sponsored by The Gay and Lesbian Anti-Violence Project And The Religious Coalition for the Freedom to Marry

In response to the violence perpetrated by Larry Cirignano, Executive Director of Catholic Citizenship against pro-marriage equality demonstrator Sarah Loy at the "Rally for Democracy" at Worcester City Hall on December 16, 2006

A Candlelight Vigil will be held on Wednesday, January 10, 2007, in the early evening Tentative plan is to gather at Copley Square, and process to the offices of Catholic Citizenship at 198 Tremont Street in Boston.

There will be a call to dialogue to anti-marriage activists in Catholic Citizenship, the Catholic League, and the Archdiocese of Boston, as we seek to move beyond the bitter and divisive debate over the proposed ban on same-sex marriage that has raged for over 3 years now. We seek to affirm peace, tolerance and mutual respect for all citizens of the Commonwealth. The tone will be respectful as we seek to dispel the anger and aggressiveness that culminated in the violence in Worcester on Saturday.

Planning still to come. Questions, suggestions, and input welcome. Please forward this announcement to friends, family, and comrades. Contact: dgorton@verizon.net(preferred) or Don Gorton at 617-262-2381

Tuesday, December 19, 2006

The most reveiling details yet in the assault at the Worcester Anti-Gay rally have just been released in EdgeBoston.com, including Mr. Cirignano's admission to Worcester police that he had in fact pushed Mrs. Loy to the ground.

"Officers did not witness the incident, Worcester police spokesperson Sgt. Kerry Hazelhurst told EDGE Dec. 19. If they had, they would have placed Cirignano under arrest on a misdemeanor charge, he said. "He’s already admitted that he touched her," Hazelhurst reported. Under Massachusetts law, a person can be charged with assault and battery by merely touching another person if the touch is unwanted, Hazelhurst explained. "He pushed her down and he admits that as well."

WORCESTER— Police have filed a criminal complaint against the executive director of Boston-based Catholic Citizenship on allegations he pushed a female counter-demonstrator to the ground during an anti-gay marriage rally Saturday outside City Hall.

I think that it is high time people start asking Raymond Flynn and Cardinal O'Maley what actions they intend on taking in this matter. Cirignano already publicly admitted to "ecorting" Mrs. Loy, which amounts to assault. Unauthorized touching of another person is illegal, and he has made it clear he crossed that line, so the witnesses testimony will only serve to prove how far things went. Personally I would expect a man of Larry Cirignano's position to have a better understanding of the law than to put his hands on anyone at a rally like this when there were police there to control the crowd. Now he will have to face the consequences of his actions, whether he comes clean on the truth or not.

I am writing to express grave concern over the incident reported to have occurred at your "Rally for Democracy" in Worcester on December 16, 2006, involving the Executive Director of Catholic Citizenship, Larry Cirignano. The use of force against a pro-marriage equality demonstrator, as reported in yesterday's Worcester Telegram and Gazette, is a serious matter. While Mr. Cirignano, in today's Boston Globe, denies that he pushed the target of the incident, Ms. Sarah Loy, to the ground, he apparently admits that he laid hands on her in an effort to interfere with her exercise of constitutionally protected rights. There apparently is no dispute that Ms. Loy fell down, irrespective of whether Mr. Cirignano intended the fall to happen. There are reports that Ms. Loy suffered cuts and bruises.

This episode represents a regrettable development in the divisive fight to ban same-sex marriage in Massachusetts and throughout the United States. It is my understanding that assault and battery charges are pending. Moreover, reports suggest that Mr. Cirignano violated Ms. Loy's civil rights by the exercise of force. It is not clear whether Ms. Loy suffered injury within the meaning of the Massachusetts Civil Rights Act, but even a bruise can be enough to elevate the offense from a misdemeanor to a felony.

I trust that your organization does not condone actions which forcibly deprive citizens of their constitutionally protected rights, or resort to unlawful battery as a means of promoting a ban on same-sex marriage. I accordingly ask that you place Mr. Cirignano on administrative leave from his position with your organization while the matter is investigated. I also ask that Catholic Citizenship formally apologize to Ms. Loy for the offense to her person and her liberty, going beyond the statement attributed to the organization in today's Boston Globe.

As Mayor of Boston, you earned a reputation for vigilance in protecting the civil rights of citizens. I am hopeful that you will see the importance of the serious civil rights concerns that are at stake in this matter, and deal appropriately with Mr. Cirignano's conduct.

Sincerely,

Don GortonChair, The Gay and Lesbian Anti-Violence Project

There is now a chorus of people calling for Larry Cirignano's resignation over his unprovoked attack on Mrs. Sarah Loy. If you have not had the opportunity to fully inform yourself on this issue, check out the many blogs covering the story, like KnowThyNeighbor.org. I am aghast at what Mr. Cirignano has done, but it just keeps getting worse. Be sure to read his email correspondance with people even after this event was covered in the newspaper. It seems to me that the man running Catholic Citizenship is a lunatic.

Sunday, December 17, 2006

I just have one question. Can there be an exceptable excuse for putting your hands on a woman and throwing her to the ground? It makes me wonder what type of a person Larry Cirignano really is. Shame on you sir, and shame on anyone that would try to defend your actions. Clearly there are bigger problems you should be dealing with than gay marriage; like anger management.

Efforts are being made to sweep this story under the rug, but it seems that the truth is leaking out. KnowThyNeighbor.org was on location at the Worcester Anti-Gay Rally this Saturday, and got first hand photos of Sarah Loy 27, of Worcester, who was attacked by none other than Larry Cirignano, executive director of the Boston-based Catholic Citizenship Group. Several witnesses reported to police that Mr. Cirignano left his position standing with others near the podium, walked over to Mrs. Loy, placed a hand on each shoulder, and threw her to the ground. Mrs. Loy hit her head on the concrete sidewalk, but seemed more shaken than harmed by the attack.

Worcester police sergeant Wells said of the attack, "We cannot arrest him right now because the law states we have to actually see the attack, and none of my men did. You will have your day in court though" when speaking to Mrs. Loy. It seemed clear that no one has a right to put their hands on another person, and that Mr. Cirignano's actions did amount to assault is this veteran policeman's opinion. A visibly shaken Mrs. Loy and her husband Brian Loy say that they are outraged that a man of Mr. Cirignano's position would act so hatefully, and they plan on pursuing this in court as advised. I was there to hear this with my own ears.

Wednesday, December 13, 2006

The Committee for Public Counsel Services (CPCS) filed an amicus brief with the SJC last week in support of Benjamin LaGuer's bid for a new trial. You can read the entire brief HERE. It and all the recent filings in the case are available at BenLaGuer.com. Excerpts follow:

"In Criminal prosecutions the Commonwealth is routinely in sole possession of evidence which is critical to the defense. As a result, the defendant must rely upon the prosecution to properly comply with the discovery rules in order to ensure a fair trial. The outcome of this appeal will likely have a significant impact on the manner in which discovery violations are handled, and, as a result, will likely influence the level of care prosecutors dedicate to meeting their discovery obligations....

It is essential to motivate prosecutors to produce exculpatory evidence because the Commonwealth is often in exclusive possession of favorable evidence. If the prosecutor fails to come forward, the defendant will have no access to the exculpatory evidence, and the "truth-finding process of trial" will be corrupted....

It is undisputed that, (1) the state police prepared a fingerprint report two days after the incident, (2) contrary to pretrial assertions by the prosecutor and the trial testimony of the lead detective, the report established that the police lifted four complete fingerprints from the base of the phone, and those prints conclusively do not match the defendant's fingerprints, (3) the report was under the custody or control of the prosecution, and (4) no part of the report was provided to the defendant until close to seventeen years after trial....

...[A]ccording to the portion of the fingerprint report still available, Detective Carignan had been personally notified long before trial by the Commonwealth's fingerprint expert that four fingerprints were lifted from the phone, and that these prints were conclusively determined to not match the defendant's fingerprints. Detective Carignan's misleading testimony is properly characterized as gross negligence."

Mitt Romney is selling himself now as a radical conservative, hoping that the same voters that helped President Bush get into and maintain the White House will do the same for him. This flies in the face of what he has sold himself as in the past, and it begs the question, will people buy it?

When running for Senate against Ted Kennedy, Mitt Romney had this to say about gay rights:

"For some voters, it might be enough to simply match my opponent's record in this area. But I believe we can and must do better. If we are to achieve the goals we share, we must make equality for gays and lesbians a mainstream concern. My opponent cannot do this. I can and will."

"as we seek to establish full equality for America’s gay and lesbian citizens, I will provide more effective leadership than my opponent."

“I feel that all people should be allowed to participate in the Boy Scouts regardless of their sexual orientation.”

"During his 2002 gubernatorial run his campaign distributed bright pink flyers during Pride that declared 'Mitt and Kerry [running mate Kerry Healey] wish you a great Pride weekend! All citizens deserve equal rights, regardless of their sexual preference.' Romney also argued that he would not only support gay friendly policies but would fight on behalf of the gay community to secure benefits such as domestic partner benefits and hospital visitation rights for same-sex couples."- Bay Windows 3/3/2005

"There will be children born to same-sex couples, and adopted by same-sax couples, and I believe that there should be rights and privileges associated with those unions and with the children that are part of those unions." On another occasion, his spokesman "declined to state Romney's position on whether homosexual couples should be allowed to adopt, and declined to say whether the governor opposes gay adoptions."- State House press conference, 6/15/2005- Boston Globe, 3/2/2006

"On Gay Rights: All citizens deserve equal rights, regardless of their sexual orientation. While he does not support gay marriage, Mitt Romney believes domestic partnership status should be recognized in a way that includes the potential for health benefits and rights of survivorship."- Romney's 2002 campaign website

At "Liberty Sunday" Romney had this to say:

"They not only reject traditional values, they reject the values of our founders and they cast aside the wisdom of the ages."- LibertySunday.com

"What (the judges) ignored is that marriage is not primarily about adults, marriage is about the nurturing and development of children ... every child deserves a mother and a father," he said.- WHDH-TV

Romney never shows his true colors. Instead, he manipulates his words so that he is in his best light with whomever he is speaking. When speaking to gays, he uses the term "gay". When he is speaking to people opposed to equality, he uses the term "homosexual". For those who are not in the know, "homosexual" is seen in the gay community as having a derogatory nature because it shows a focus on sexuality rather than the human individual. The politicly correct term would we "gay" or "lesbian" and Romney knows this well. This is no "tar-baby" incident.

And he had this to say about abortion rights:

"I believe that abortion should be safe and legal in this country. ... I believe that since Roe v. Wade has been the law for 20 years we should sustain and support it. "

And on the subject of the “Morning after pill”:

"..it’s an effective morning after pill and I think it would be a positive thing to have women have the choice of taking morning-after pills….I would favor having it available."

The list goes on and on. Romney backed RU-486, waiting periods for gun purchases, indexing the minimum wage to inflation, and numerous other progressive causes.

Mitt Romney has always been a thoughtful, pragmatic Republican of the Northeastern tradition.

Until now.

The “new and improved” Mitt Romney is running for president. Gone is the cold sober realist of the past. Gone is his advocacy for gay rights and abortion rights. He is pandering to the GOP’s bigot base. READ MY LIPS Mr. Romney, "No more LIES."

Canadian MPs have rejected a proposal by the governing Conservative party to overturn a law allowing gay marriage, BBC reports. Twelve Conservative MPs, including several members of the cabinet, joined Liberals and Canada's other opposition parties to defeat the motion 175-123.

Conservatives have conceded defeat.

"The vote was decisive and obviously we will accept the democratic resolve of the people's representatives," Said Conservative Prime Minister Stepen Harper.

We should all take a few minutes to read Prime Minister Paul Martin;s speech which he gave last year.

Tuesday, December 12, 2006

Tom Lang is the founder and co-director of KnowThyNeighbor.org, a grassroots coalition of volunteers who run an open forum blog about gay equality and marriage. It was this group that posted the names and addresses of the people who signed the petition to ban gay marriage, in an attempt to promote dialog between people of opposing opinions. Organized hate groups have screamed that this amounts to intimidation since before the website even opened, yet as usual they have failed to prove their accusations.

Instead, KnowThyNeighbor.org has given people of all opinions a place where they can talk directly to each other, and in doing so has opened the door for understanding, and peace. Another of the many benefits this website has given our society is the ability to check to see if our signatures were stolen, and an easy link to report it to the proper channels. Mr. Lang and his co-director Aaron Toleos have kept readers up to date on the latest events concerning the marriage equality struggle, and have served as watchdogs for the numerous unethical tactics used by those seeking to ban gay marriage.

In the latest article posted on his website, Mr. Lang gives a review of the rallies that the hate group known as VoteonMarriage.org has attempted to organize recently, and their shortcomings.

"Thanks to all those who came out in support of Equal Rights. See the below photos and re-caps of the events. And remember, there still is one more rally to go. Saturday December 16th Worcester City Hall 1:30 PM Be There!"Click here for the full story.

The website BenLaGuer.com does a great job of providing all the background you need on this case, so I will stay focused on the single issue that bothers me most. The question that DA John Conte seems to be ready to retire from office and never answer is, "why did fingerprint evidence never get shared with Ben LaGuer?" There were four fingerprints on the phone used to tie up the victim of a brutal rape, and we LOST them?! I'm not kidding folks. They are gone, and John Conte is mum on the subject. His office's official position on this is that the evidence would not have mattered anyway in the conviction of Ben LaGuer 23 years ago. Excuse me for not having a degree in jurisprudence, but how can physical evidence that suggests someone else was the assailant rather than Ben LaGuer not be pertinent? That's right, the fingerprints are proven NOT to be LaGuer's. This report was ready 2 days after the crime, but we are asked to believe that six months later the DA's office had still not received the report. This evidence would have never been shared with defense, but they found it on their own....18 years after Ben LaGuer was convicted without any physical evidence linking him to the crime. The fingerprints are missing off the report, and the chain of custody that would lead us to who had the evidence last is not being shared.

Call your state representative, call the governor's office, call Worcester DA John Conte's office and demand that there be an investigation as to why this happened so that it doesn't happen again. Ben LaGuer never received a fair trial because he did not have a chance to show the jury that it was someone else that pulled that phone off the wall, and someone else that committed this crime. All he wants now is a chance to be heard once again. Is that too much to ask of us from a man who turned down a plea bargain under which he would have served just two years, and has maintained his innocence at the cost of his freedom for almost a quarter of a century? No, it is not. If he is truly guilty the evidence against him will show that, and he will remain in jail to serve his life sentence. Negligence by the prosecution is blatant and obvious, and we need to correct this so justice is served.

If I could address DA John Conte directly I would say, "The jury didn't see a stitch of physical evidence in this case, yet you want us to believe that fingerprints are not pertinent? Come on John, that's a lie and you know it." And trying to hide behind a 2002 DNA test that supposedly linked LaGuer to the crime won't work either. Four highly credible DNA experts have looked at the evidence and document trail and see contaminaion written all over it. If you have that much faith in the DNA test then why are you so afraid of a new trial? C'mon, its time to get this all out into the open and a new trial is the appropriate place to do it.

Sunday, December 10, 2006

YouTube.com is a great source of information, as well as a way for people to express themselves to the world. There seems to be no limit to what you can find one this site, ranging from the bizzare, to sex, to graphic violence. The site uses a form of viewer self censorship, where if you think a video is in violation of the terms of service, you report it, selecting from a short list of reasons the video is being flagged. After that, the video is reviewed by YouTube.com, and the video is hidden from common view. You must then hit a "confirm" button in order to view it. The site does not seem to allow children to set up an account, but the videos that have not yet been "flagged" as inappropriate are still easily viewed by anyone without an account. The title of the article has a link to one such video that illustrated my point as of Sunday, December 10, 2006 when I came across this.

YouTube.com's position on this is clearly stated in it's posted regulations. Whatever is posted is the responsibility of the poster, and they wish to distance themselves of any liability. With the growing availability of video recordings, and children's inherent desire to mimmick what they see others do, wouldn't the public be better served if YouTube.com made it's site less available? NetNanny.com has been keeping children safe for years, and is simple to set up. Knowing what your children are watching on the internet is a main responsibily of the modern parent. There are many things out there that can confuse and subvert the values you are trying to instill in your children.

The answer to the YouTube.com problem is two fold; ask sites like this to police themsleves better, and keep an eye on what your children see by being more involved. In the end we will only have ourselves to blame if someone were to get hurt because of children watching and immitating the violence they see. Surf this site yourself for a few moments and the problem becomes clear. If you are not impressed by what you find on your own, try using a search word like, "gang" and see what videos pop up. Once the shock of knowing gang members are talking directly to our children starts to subside, look down in the bottom lefthand corner of the screen just under "ratings" and you can see that most of these videos have been viewed tens of thousands of times. I am not one for censorship, but we have an obligation to protect our children while their minds are still forming.

Saturday, December 09, 2006

I've been gone a few days, but I was really pleased to read the Reply Brief attorney James C. Rehnquist and his team at Goodwin Procter LLP filed with the SJC earlier this week in their bid to overturn Benjamin LaGuer's 1984 rape conviction. They make no bones about calling the Commonwealth (in this case represented by outgoing Worcester DA John J. Conte) out on its shameless use of distractions, distortions, and what the brief calls "misstating the factual record" (I think the technical term is 'lies'), in defending what the brief calls "its indefensible conviction of Mr. LaGuer."

As Live, Love & Learn readers know, LaGuer has been fighting a wrongful rape conviction for 23 years. In November 2001 a young lawyer unearthed a report showing that four fingerprints lifted from the base of the trimline telephone, the cord of which the perpetrator used to bind the victim's wrists, did not match LaGuer's. That information was never shared with the defense, a clear violation of LaGuer's constitutional right to a fair trial. The State Police has subsequently lost or destroyed the actual prints retrieved from that phone. Rehnquist filed his opening high court brief with the SJC on September 11. The Commonwealth filed its Opposition Brief on November 15. Of its 50 pages only a few deal with legal arguments as to why this withholding of exculpatory evidence should not merit a new trial. The rest is a recitation of the horrific nature of the crime (which is not at issue) and a selective and dishonest account of the trial and subsequent events through which the Commonwealth tries to make the claim that the case against LaGuer was so overwhelming (it was not) that four fingerprints on an item used in the commission of the crime would have had no effect on the jury.

Read Rehnquist's entire Reply Brief HERE. Or just peruse the following excerpts including several below the flip:

On the commonwealth's tactics Rehnquist tells the justices:

"Astonishingly, despite repeated admonitions during earlier stages of this appeal, the Commonwealth persists in misstating the factual record and making irrelevant post-trial allegations. At this stage, such conduct leaves one only to conclude that the Commonwealth aims to distract the Court from the issues in this appeal... a comprehensive list of the Commonwealth's misstatements and the irrelevant post-trial allegations would consume far more space than a Reply permits.... In short, the Commonwealth's persistent misstatements of fact and irrelevant post-trial allegations are nothing more than attempts to provide misinformation and to distract the Court from the issues in this appeal. Such attempts should not be rewarded."

On the 2002 DNA test which supposedly linked linked LaGuer to the crime Rehnquist has this to say:

"Beyond its reliance of numerous misstatements and mischaracterizations, the Commonwealth tries to justify its suppression of exculpatory evidence by repeatedly making post-trial allegations concerning DNA testing... no court has yet considered the relevance and admissibility of such evidence (indeed, no court has ever seen any purported DNA report), and issues such as reliability and chain of custody must be addressed, before such evidence may be considered, Indeed, the very fact that the Commonwealth has never sought to admit any DNA-related laboratory or analytical reports before any court cautions against this Court's consideration of any such alleged evidence now."

On the overall content of the Commonwealth brief Rehnquist says,

"The issue raised in Mr. LaGuer's opening brief is very clear - the Appeals Court erred in affirming the trial court's denial of Mr. LaGuer's motion for a new trial because the Commonwealth violated Mr. LaGuer's constitutional rights by first suppressing, and then losing or destroying, exculpatory fingerprint evidence. Rather than address this argument head-on, however, the Commonwealth spends most of its brief misstating the record, emphasizing the horrific nature of the crime, and relying on post-trial allegations in an effort to persuade the Court to ignore the Commonwealth's clear violation of Mr. LaGuer's constitutional rights. The Commonwealth's flagrant attempt to inflame the passions and prejudices of the Court should not be tolerated."

On the legal arguments advanced in the Commonwealth brief:

"Incredibly, the Commonwealth leads its opposition by arguing that, despite the Commonwealth's suppression of the exculpatory fingerprint report for over eighteen years, Mr. LaGuer's trial counsel somehow knew that this crucial report existed but made a tactical decision to proceed to trial without it. This argument not only is factually flawed, but also ignores well-established legal precedent requiring the Commonwealth to turn over all exculpatory evidence to the defendant... Any suggestion that Mr. LaGuier's trial counsel knew about the report but made a "tactical decision" to proceed to trial without it is simply belied by the record."

On the Commonwealth's attempt to shift the blame to LaGuer for not trying hard enough to access the fingerprint evidence Rehnquist points out:

"[T]he Commonwealth asserts that Mr. LaGuer's counsel should have done more to seek out this crucial evidence. Setting aside the fact that, as explained above, Mr. LaGuer's trial counsel did not know this evidence existed, the Commonwealth's argument is patently absurd, given that Mr. LaGuer's trial counsel made multiple written and oral requests, to no avail, specifically for this type of evidence. Further, the Commonwealth's argument completely ignores well-settled precedent affirmatively requiring the prosecution to turn over to a criminal defendant all potentially exculpatory evidence in its possession, even if not requested. In making these arguments, the Commonwealth tries to shift to the defendant the burden of seeking out exculpatory evidence. That view, however, is plainly at odds with the Commonwealth's constitutional obligations. The Commonwealth's suggestion that the law obligates defense counsel to do more than make multiple specific requests for exculpatory evidence is untenable."

As for the Commonwealth's assertion that, hey no one ever told the prosecutor about the fingerprint report, Rehnquist retorts:

"[T]he Commonwealth tries to absolve itself by claiming that the fingerprint report was never in the trial prosecutor's possession. Even if true, though, this claim is irrelevant because the report itself reflects that both the State Police crime lab and Det. Carignan knew of the four non-matching prints and the report."

On what he calls the "perverse logic" behind the Commonwealth's attempts to undermine LaGuer's constitutional rights Rehnquist writes:

"The danger of the Commonwealth's position to defendants' constitutional right to a fair trial is particularly evident in this case. For eighteen years, the Commonwealth suppressed from Mr. LaGuer evidence implicating another individual. In the course of suppressing that evidence, the Commonwealth lost or destroyed the back page of the report and the actual fingerprints themselves, denying Mr. LaGuer any opportunity to examine that evidence for its exculpatory value. Then, upon finally revealing that the evidence exists, the Commonwealth attempts to use the prejudice it created against Mr. LaGuer by arguing that Mr. LaGuer can only speculate as to the benefit the evidence might have provided to his defense. This perverse logic is essentially a blueprint for the Commonwealth's violation of the defendants' constitutional rights with impunity - turning the disclosure duties of Brady and Tucceri into, as the Court feared, an "empty promise.""

Less than a month now remains until oral arguments, which are set for January 4, 2007 (yes, the same day Deval Patrick is inaugurated). The issue now is whether LaGuer got a fair trial. By hiding potentially exculpatory evidence from the defense the Commonwealth, it seems clear, failed to live up to its constitutional obligations. The next question is whether or not LaGuer actually committed the crime. If the SJC overturns the verdict, that will be something for a new jury to decide. The Commonwealth's misleading brief notwithstanding, the evidence I've studied clearly indicates that he did not.

Tuesday, December 05, 2006

Aaron Toleos' Video Interview with VoteonMarriage Member.

God bless Aaron Toleos! Who knows why he didn't post this on his own website, knowthyneighbor.org, but this video says it all about the stark hypocracy and ignorance of the struggle against gay rights. This woman reduces herself and VoteonMarriage.org with her smug antics. At one point she even sticks her tongue out at Gregg Kimball, treasurer of KTN, who is conversing with her. Having failed at proving a need to end gay marriage, I guess this is what we can expect from here on.

Thursday, November 30, 2006

As the Benjamin LaGuer case heads for oral arguments in the Supreme Judicial Court it is vitally important for civically engaged netizens to keep a close eye on the process. Trials and other court proceedings are public for a reason, because in a democracy sunshine is always the best disinfectant. Two weeks ago the commonwealth filed its brief opposing LaGuer's bid for a new trial. It is a public document and I've posted it in full to BenLaGuer.com (look on the "Filings and Rulings" page). I also published this commentary on it in this week's Valley Advocate. LaGuer's lawyers, headed by James C. Rehnquist, are due to file a rebuttal next Monday (Dec. 4). The Committee for Public Counsel Services is expected to file an amicus.

Never doubt the ability of lawyers to massage just about any set of facts into the service of the case they are trying to make. That is the nature of the job and the good ones do it with finesse. Outgoing Worcester County District Attorney John J. Conte recently filed his brief opposing Benjamin LaGuer's bid for a new trial. The document, available in full at www.BenLaGuer.com, crosses the line from artful to deceitful.

Conte's dogged unwillingness to look at new evidence that has emerged over the 23 years LaGuer has been claiming his innocence is nothing short of shameful. Five years ago a young attorney unearthed a report showing that four fingerprints found on the base of a trimline phone, the cord of which was used to bind the victim's wrists, did not match LaGuer's. That report, which is the basis for LaGuer's quest for a new trial, was hidden from the defense and by extension the jury.

In opposing a new trial, Conte devotes just a few of the 50 pages in his brief to legal arguments as to why this suppressed evidence shouldn't warrant a new trial. The rest is a hodgepodge of disingenuous claims, based on a fundamentally inaccurate reading of the trial transcripts, that the case against LaGuer was so overwhelming that knowledge of a few fingerprints found on an object used in the commission of the crime would not have influenced the jury. From there Conte reasons backward to claim that the fact that those prints have since been lost or destroyed is of no consequence.

Conte draws attention to a 2002 DNA test showing a trace amount of LaGuer's genetic material in the biological evidence. He neglects to acknowledge that four highly reputable DNA experts have since examined the document trail associated with the evidence in conjunction with the DNA reports, and concluded that the potential for contamination was extremely high.

But worse than his dishonest and selective use of the record and the DNA testing, Conte introduces a flat-out lie into the proceedings, a lie not related to fingerprints but to blood type.

In October, 1983, three months after having been sent to jail based on a flimsy investigation, LaGuer made an egregious error which he later admitted to. He subverted a court-ordered test of his saliva by mixing spit from his cellmate in with the sample he gave the police. As a result, the State Police chemist was unable to determine LaGuer's blood type from that sample. Oddly, according to the forensic report, the chemist was also unable to determine a type on all but one of seven items in the evidence that had blood on them. There was one piece of tissue paper the chemist reported as having Type B blood on it.

LaGuer has Type B blood. From then on, every time he mustered a challenge to his conviction, prosecutors argued that his blood type linked him to that tissue and the crime. In August, 2001 that same blood was submitted for DNA testing on the theory that if it, or any of the other blood from the crime scene, matched LaGuer's genetic profile, there could be little doubt about his guilt. Astonishingly, the blood not only did not match LaGuer's DNA, but it did match the victim's DNA, though the victim is known to have had Type O blood.

This means that the forensic report was wrong on a fundamental fact, a very serious issue in and of itself. It was such a dramatic revelation that on February 15, 2002 the Boston Globe's David Arnold reported:

"For many years Conte has insisted that the blood on the tissues belonged to LaGuer. Parole boards and appellate judges have kept LaGuer in prison partly because of that assertion. In 1991 the state Supreme Judicial Supreme Court denied LaGuer's appeal for a new trial partly because 'the defendant's... blood type was the same as that found on tissues at the rape scene,' Justices Paul Liacos, Herbert Wilkins, Joseph Nolan, Francis O'Connor and John Greaney concluded."

Fast forward to the brief Conte submitted to the Supreme Judicial Court this month. In it he repeats the false claim that the blood type connected LaGuer to the crime, even after he knows that to be false.

Conte's brief is riddled with marginally relevant and outright bogus indicators of the supposedly overwhelming case against LaGuer. It also makes much of LaGuer's admitted contamination of the 1983 saliva sample, terming it a "fraud on the court" that precludes him from getting any consideration based on the suppressed fingerprint report. In fact, by brazenly perpetuating the debunked connection between LaGuer and the falsely reported type B blood found at the crime scene, it is Conte who is trying to hoodwink the justices.

The ability to walk a mile in another man’s moccasins affords those who practice it a more complete understanding in most any situation. Pertaining to the issue of marriage equality, I see a group of conservative minded people who are doing what they believe is best for themselves and those they care about. Standing up for what they believe in is an admirable notion, but when it is accomplished through omission and mistruth, it loses all nobility. The petition to end marriage equality was put into existence under dubious circumstances and should not necessarily be seen as the will of the people.

Time and time again the opponents of marriage equality have told the public they need to fear gays being married. They say that their churches and way of life are under attack, the sanctity of marriage is at stake, and that society needs to protect children. Were any of these accusations true, it would be of concern to me as well, but the proof is lacking. In the nearly three years that marriage equality has existed, it has not been proven a threat to anyone, let alone harmful. VoteonMarriage.org and Massachusetts Family Institute have failed in their responsibility to prove what they accuse to the citizens of this commonwealth. It is time for logical heads to prevail and voice the reality that gay marriage is no more harmful than any other aspect of living in a continually more diverse society. Unfounded charges should not be afforded the dignity of our attention, especially when those charges are meant to deny an entire class of people their civil rights.

These groups have failed to bring a majority of citizens to support their root cause. The opponents of marriage equality hope to divert voter’s attention to an argument that has more impact only at first glance. They argue that the right to vote directly on this issue is being taken away from citizens, and democracy is being overruled by our legislators. This is not the truth, but it grabs people's attention. They are doing this as a distraction from what this amendment is meant to do for our community, and what it will say about our state. Our own constitution argues that one citizen’s rights end where another citizen’s rights begin. We need to be ever vigilant not to legislate beliefs, even our own. In a country that prides itself on freedom and equality, and in a state whose history is so rich in the leadership of these principles, how do we justify such a vote where no such justification has been established?

We have elected fine representatives that understand the essence of liberty, their responsibilities, and see the amendment to end marriage equality for what it is; a vessel of hatred and bigotry. They understand civil rights are not to be voted upon, and if this amendment comes before us on a ballot, we the people would vote it down ourselves. They are trying to save us all another two years of vitriol and social division. Let the legislators do their job and defend us from those who level unsubstantiated charges against their neighbors that are akin to bearing false witness.

The attempt to simplify this matter into a debate on whether we should vote directly is an attempt to distract and dupe people once again. The same was done when this very petition was circulated. Don't fall for it people, you're better than that. Gay people are individuals, just like everyone else. As individuals they have proven themselves as worthy neighbors, and generous contributors to society. There are no good reasons to deny gay people the dignity to marry, or be treated as lesser than equal solely of the fact that they are gay.

In conclusion, let us lay to rest the argument once and for all, whether or not marriage is a civil right with the precedent cited from the United States Supreme Court; “Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.”

Monday, November 27, 2006

Visit QueerToday.com for all the information on this event. All minorities are walking in this march as well as their supporters. Equality is unconditional, or at least that is what was expected of this great nation. There is no need to fear freedom, and it is our differences that make us the strongest nation on Earth. I pray we never outgrow the ability to learn from one another and be better for the experience. Bigotry has no place in our lives, and we can make a difference if we start standing up to it rather than allowing it. Encourage your friends to join you, or come alone. There will be plenty of new friends to make once you are there!

Thursday, November 23, 2006

Your son comes home from Iraq and celebrates his twenty first birthday with his friends. In the course of the evening he and a friend visit several places to see old friends and drink. No one asks as they leave the last bar who is driving. Tragedy strikes. While driving home a little boy is run over and the car spins out of control, going off the road, flipping several times, ejecting both occupants. The boy who was hit and your son's friend die shortly after from their injuries. The officer that arrived at the scene says your son was the driver and is charging him with two counts of vehicular homicide, and aggravated drunk driving. When you son becomes conscious again he states that he was not the driver, but suddenly the blood evidence that would have proven him innocent is now missing. He is convicted on all counts with no physical evidence. He appeals for a new trial based on lost evidence, but his conviction seems to serve as proof of his guilt in the eyes of those whose job it is to administer justice on behalf of public good. The horror of the scene fuels public outrage, seeming to prevent him from getting justice.

Sound like a far fetched horror story? I have written this to parallel the case against Ben LaGuer, a man who had come back from serving in the army and just turned twenty years old when a heinous and violent crime was committed against his neighbor. When you take a look at this case without the assumption of guilt, the facts paint a very different picture than what we would expect of a man convicted of rape,and sentenced to life more than 23 years ago. In the rush to find the guilty party, many mistakes were made. Investigators may have come to another conclusion had they bothered to look further. When the facts of this case are laid out together they point to the strong possibility that we have jailed an innocent man, but they most certainly call for a second look, and a new trial.

On July 14, 1983 Leominster's Detective Carignan obtained a search warrant for Ben LaGuer's apartment by stating the victim said she saw the assailant enter Ben's apartment. Later the detective would tell a grand jury that the crime took place in Ben's apartment, and that the victim identified Ben by name. All three points have been refuted by the victim herself. She was shown a picture of Ben LaGuer by Detective Carignan while in her hospital bed still reeling from the attack and said it was the assailant. Later they would find out she has schizophrenia, a disease that causes it's sufferer to confuse similar people as being the same person. Then they find out that the police had found a likelier suspect that matched Ben's description so perfectly that his own father once mistook him for Ben at a distance. This man had previously lived in the building, had a history of sexually abusing family members, had already spent time in a mental institution, and since Ben has been behind bars, has gone on to be convicted of rape. No forensic evidence was ever found to link Ben to this crime. He was convicted solely on the victim's ability to identify him. She was 59 years old at the time, had problems with her vision along with the schizophrenia. The one piece of evidence that may have saved him was the phone that the assailant ripped off the wall only ten minutes before police arrived. The fingerprints on it that did not match Ben's. The test results were verified two days after the attack, yet District Attorney John Conte's office claimed the report was still not ready for the January trial six months later. The report dated July 16, 1983 surfaced 18 years after the conviction. The physical fingerprint evidence is still missing.

Ben Laguer has maintained his innocence all these years despite the fact that in doing so he keeps himself behind bars. Had he taken the plea bargain they offered,he could have been free in only two years. The parole board continues to reject him based solely on his claim of innocence. He continues to hope for a new trial. There are many more disturbing facts that I have not shared with you about this case. If you are interested in a more detailed account visit BenLaGuer.com. Before you look away to more pleasant subjects and decide not to involve yourself, remember that the same justice system that served Mr. LaGuer serves you as well. The statue of Justice is blindfolded so that she may listen to the facts without prejudice. She is not meant to be deaf or dumb to those facts, otherwise justice is not served.

You can contact District Attorney John Conte's office and voice your concerns by calling 508-775-8601, faxing 508-831-9899, by email elizabeth.stammo@state.ma.us, or by writing to: John Conte, District Attorney Courthouse room 220 2 Main St. Worcester, MA 01608

Let them know how you feel. If their case against Ben LaGuer has merit they should not fear a new trial, and that the questions in this case demand one.

Sunday, November 19, 2006

This is the second in a series of posts on the Benjamin LaGuer issue. This afternoon I spent time on some of the rightwardly winged Massachusetts blogs. Gov. Elect Deval Patrick's appointment of Joan Wallace-Benjamin as his chief of staff was getting a workout. Like Patrick, she had spoken out on the injustices of the LaGuer case in the 1990's. So the conservative bloggers were busy opining as to when the prison doors in the state are going to be swinging wide open. I happen to have a lot of respect for true conservatism. So my post to their blogs is aimed at appealing to their better angels. Feel free to use the links to add your $.02.

I am glad to see that there is a two-sided debate on Hub Politics and Wizbang! and Universal Hub on Benjamin LaGuer's actual guilt. (Which is a separate question from whether he got a fair trial. That question will be taken up by the SJC in January.)

Having researched the case I have come to the conclusion that not only did LaGuer not commit the crime, but the police overlooked a likelier suspect who went on to be charged with another rape and who is still living in the community. Does that make me a bleeding heart liberal? Absolutely not. It makes me someone who takes law enforcement and public safety seriously. As I argued on Hub Politics last August when it looked like the Tom Reilly campaign was trying to smear Patrick for his comments on the LaGuer case, true conservatives are instinctively suspicious of government power. In this case, the Worcester legal establishment (long dominated by Democrats, by the way) has been going to extraordinary lengths to defend a bad conviction.

I'll be the first to acknowledge that the 2002 DNA test sealed the question of LaGuer's guilt in the minds of many people. I would be among them had I not taken a closer look at the case. The fact is, there is a growing awareness in the DNA expert community (read: Tarnish on the 'Gold Standard': Recent Problems in Forensic DNA Testing, by William Thompson) that just as in everything human beings do there is potential for error when it comes to forensic DNA. Don't get me wrong, it's an important tool and law enforcement has and will use it to good effect. But there are now dozens of case studies showing that the results are susceptible to mistakes through lab error, contamination and occasionally fraud. As the saying goes, The Price of Liberty is Eternal Vigilance. So whether you are liberal, conservative or somewhere else on the spectrum, don't ever make the mistake of kissing away your Constitutional rights through a blind faith in supposedly scientific proclamations.

In LaGuer's case four highly reputable DNA experts have looked a the paper trail associated with the evidence and they have looked at the DNA reports (which are available in full at www.BenLaGuer.com) and concluded that contamination is the best explanation for how the results turned out. One of them had this to say:

“In summary, there are numerous deficiencies in this case relating to the criminal investigation, evidence collection, evidence handling, evidence storage, chain of custody, serology testing, and DNA testing. The types of errors and mistakes in this case are the result of individuals not adhering to the accepted standards and practices of criminal investigation and forensic laboratory testing.”

So whatever your political leanings, always view the government with suspicion. I think if you take a hard and honest look at this case you will agree that LaGuer deserves a new trial. After all, the commonwealth hid a State Police generated report from him at the time of trial that showed there were four fingerprints found on the base of the trimline telephone, the cord of which was used to bind the victim's wrists and that they belonged to someone other than LaGuer. Under our system of justice (which I wouldn't want to trade for any in the world) that is just plain unacceptable.

If you oppose a new trial that means you are for saying it is okay for the government to hide key and potentially exculpatory evidence. If that is the kind of country you want to live in, then God help you. A new jury at a new trial will have every opportunity to examine the DNA and any other evidence the commonwealth wants to introduce. It will also have the right and indeed duty to reconvict LaGuer if that is their conclusion.

By the way, for those who don't know this already, the lawyer who is working for free to argue LaGuer's case in the upcoming SJC hearing on January 4, 2007 is a guy named James C. Rehnquist. His father was the late Chief Justice William Rehnquist, one of the towering figures in conservative jurisprudence of the latter part of the 20th century. So before you join in the political spinning that characterized how all sides used this case in the campaign, ask yourself what it means to be an American, and what the right to a fair trial might mean to you or someone you love some day.

(For more chatter on the LaGuer/Joan Wallace-Benjamin connection head on over to the Blue Mass Group blog.)

Wednesday, November 15, 2006

John encouraged me to post this here (thank you John for your glowing praise of my blogging). While I'm not a native of MA (yet), this will give you a little something to be grateful for. At least you don't have to hear this as much as we do!

As to the sinister implications of “same sex marriage” here are a few. Our society would experience the loss of religious freedom. This has happened in Canada where Biblical preaching against sodomy is interpreted as hate speech.

and you should care about this why? laws were passed allowing blacks and whites to marry but it hasn't stopped my home church from preaching against it (among other things) and refusing to marry interracial couples.

The public schools will teach homosexuality because it will be the law of the land. Moral instruction on sexual matters may become obsolete and even forbidden.

proof??? schools can't even teach safe sex what makes you think they'll be teaching gay sex. btw, gay sex is not performed any differently than straight sex, only the genders are the same. i know, too much for your mind to handle.

Adoption laws will collapse with regard to the make up of the family and any party will be able to adopt children.

and being able to get kids out of orphanages and revolving foster care is a bad thing? gee, i thought you guys cared about the kids.

Children will be expected to develop emotionally without the permanence of family life.

what's more permanent than marriage? first we're condemned for being promiscuous and then those that want permanence with their soulmates through marriage are told they can't possibly be permanent. who are you to say? how many kids are already expected to develop emotionally without the permanence of family life? you know, divorce? and how many kids are shifted from one parent to the other, from grandparents to aunts/uncles to cousins twice removed? want kids in permanent environments? work on your own first, eh?

Traditional marriage will begin to disappear like it has in Scandinavia where cohabitation is the norm.

show proof, please. The fact is that Scandinavia doesn't have "gay marriage," per se, but "registered partnerships" open to only same-sex couples that give MOST of the rights of marriage but by a different name. For instance, a same-sex couple can adopt each other's children but not children outside of the relationship. So, again, this is a bad thing? What has been seen as the "fall" of traditional marriages is really the rise of same-sex couples entering into "registered partnerships." Not to mention the fact that Scandinavian countries have the lowest poverty rates and highest education rates which basically take away the need for forced marriage of heterosexual couples. They're doing it (marriage) because they love each other, not because the HAVE to.

how? so apparently having gay couples being able to care for each other "in sickness and in health" will destroy health care? that doesn't make any sense.

And for those of us who believe in the Bible where sodomy is a symbol of social destruction it could get even worse. That was why we voted for the amendment.

and that's YOUR beliefs, not everyone's. p.s. not only gay people perform sodomy. your bible also says that the races should be separated and that it's okay to have slaves, that women shouldn't cut their hair, and that it's wrong to eat shellfish, that your supposed to keep 300 concubines and sleep with your daughter. sounds like you guys have the corner on perversion and bizarre ritual!

If you think this is classically stupid, you should check the fundies coming out of the woodwork over companies in Tennessee offering domestic partner benefits!

Tuesday, November 14, 2006

John Hosty was kind enough to let me post to his blog, so I am putting up an article I published last week out in the boondocks of Western Mass (where I live). Thanks to the internet it is getting extra play in places like Blue Mass Group and I have gotten some invitations to talk about it on the radio. An article I wrote last summer titled LaGuer Reconsidered explains some of the underlying problems with the case against the man Kerry Healey tried to turn into a winning campaign issue. LaGuer has maintained his innocence though 23 years of incarceration. His case is currently in the courts with a hearing scheduled for January.

For more than two decades, Benjamin LaGuer has done everything in his power to get his claims that he was falsely convicted of rape into the public eye. Last month Kerry Healey turned him into a household name. What she neglected to mention, because it didn’t suit her campaign, was that real doubts about LaGuer’s guilt still linger. A challenge to his conviction is currently in the Supreme Judicial Court based on a potentially exculpatory fingerprint report that was withheld from the defense at trial and which emerged 18 years after that fact.

How did a case before the highest court in the state become a political football in the race to lead the executive branch? The answer is probably rooted in Worcester politics.

On September 20, when Deval Patrick’s convincing primary victory the previous day filled the headlines, what looked like minor machinations in a local Worcester county drama began to unfold. Gov. Mitt Romney nominated James R. Lemire, a longtime acolyte of retiring Worcester District Attorney John J. Conte, for a Superior Court judgeship. Lemire, a seemingly innocuous choice, happens to have been the prosecutor who convicted LaGuer in the trial where the fingerprint report never saw the light of day.

The Governor’s Council, which approves judicial nominees, held its hearing on the Lemire nomination on September 27. Peter Vickery, the western Massachusetts representative, surprised those attending by questioning Lemire about his role in the LaGuer case. Within hours of that hearing, Leominster Mayor Dean Mazzarella, another reliable Conte loyalist, spoke to a local Leominster reporter and fed him a one-source story on wanting to question Patrick about comments attributed to him on www.BenLaGuer.com, a website I have been editing for several years. The Patrick quote, which reads, “I therefore have serious misgivings about the integrity of the criminal justice system in this case, as I believe any citizen would,” had been raised briefly by the Boston Herald during the primary campaign in August. Patrick spokesman Richard Chacon quickly responded in an interview with the Sentinel and Enterprise, which covers Leominster. He defended Patrick’s interest in the case, adding that the comments stemmed from a time when the candidate worked for the National Association for the Advancement of Colored People many years ago. The issue went away until Mazzarella resurrected it a month later.

To fully appreciate the dynamics of the LaGuer case, one has to know that through 23 years of incarceration, LaGuer has been in constant battle with Conte. The inmate became adept at asymmetrical warfare, using the media to embarrass his nemesis time and again while at the same time attracting top notch legal representation. Every time it looked like LaGuer was down for the count—even after a 2002 DNA test seemed to link him to the crime—he revived and came back with a stronger team. His current attorney, James C. Rehnquist, is the son of the late chief justice. Experts have recently gone on record to say that the DNA results look as if they stem from contaminated evidence. Through the years LaGuer won many battles, including a favorable decision by the SJC on the issue of juror racism, and the support of famous people like Elie Wiesel, William Styron, Henry Louis Gates, Jr. and John Silber. LaGuer earned a bachelor’s degree with honors from Boston University while in prison and won a prestigious Pen Award for his writing. But Conte always found a way to prevail in the end and keep LaGuer in prison. He blindly defended the integrity of the conviction, never once showing a willingness to look at new evidence. Now Conte is on the way out and the long-running LaGuer case is headed for arguments in the SJC. Promoting Lemire, who would not likely have kept his job as a prosecutor in the new administration, to a judgeship can be seen as a way to help insulate him from the consequences of foul play in the handling of a conviction Conte cares about deeply.

The timing of Mazzarella’s ploy to extract a statement from Patrick condemning LaGuer makes a connection to the Lemire nomination look like more than mere coincidence. Mazzarella’s credentials for speaking about the case rest on the fact that as a rookie police officer he was one of the first to arrive at the scene of the 1983 crime. He apparently accompanied the victim in the ambulance, but there is no record of his filing a report. The story Mazzarella fed to a local reporter about his concerns that as governor Patrick might give LaGuer preferential treatment appeared in print on Thursday, September 28. That afternoon the mayor went on the Howie Carr drive time radio show to begin a relentless attack on LaGuer and on Patrick’s connection to the case.

By the end of the day, Patrick crafted out a carefully worded statement saying that in his opinion “justice has been served” in the LaGuer case. Those wanting to ensure Lemire’s confirmation, which came to fruition with Vickery casting the lone dissenting vote, were undoubtedly pleased. The issue might have gone away again had two things not happened: 1) Mazzarella’s graphic and incessant recitation of the victim’s condition, combined with a linkage to Patrick, resonated with talk radio hosts and their audiences, triggering a hate-filled feeding frenzy on the airwaves. 2) In his statement, Patrick was untruthful about the extent of his involvement in the LaGuer case, repeating his characterization of it as a minor interest of more than a decade ago.

Early the next week a bombshell hit when the Boston Globe found a letter Patrick had written to the parole board on LaGuer’s behalf in 1998 and then resubmitted at a second hearing in 2000. Later that week it was revealed that Patrick had written a large check ($5,000 is the figure used, but Patrick has yet to confirm that number) in support of LaGuer’s quest for DNA testing.

With those revelations Patrick’s high-flying poll numbers right after the primary looked to be in serious jeopardy. The Healey campaign had just unveiled a TV ad lambasting Patrick for representing a Florida man and getting his death sentence for killing a police officer reduced to life in prison. The LaGuer issue must have seemed like a gift that for the next two weeks just kept on giving. The hate mongers on talk radio led the way. Robert Barry, the son-in-law of the woman LaGuer was convicted of raping, joined Mazzarella on that circuit in continuously repeating gruesome aspects of the crime in graphic detail. Barry even turned his celebrity status into a fundraising opportunity when one radio host, John DePetro, set up a way of donating to his wife, Elizabeth Barry, based on her diagnosis of Lou Gehrig’s disease. The host spent hours hectoring Patrick to contribute to that fund.

The Patrick campaign seemed flummoxed by the day-in-and-day-out drubbing they were getting on the airwaves. Mazzarella demanded a meeting with the candidate and he complied. The Barry family created a mantra out of demanding an apology from him, prompting Patrick to call them and to offer his sympathy for pain the publicity around the 23-year-old crime was causing them. Robert Barry’s response was to publicly rebuke Patrick because he didn’t think his disavowal of LaGuer was strong enough. He and his wife invited television crews into their home and then endorsed Healey at a press conference where Elizabeth Barry, whose body is wasting from her disease, was wheeled in to appear with the Republican candidate.

The appearance meshed with Healey’s objective of somehow capturing the one-dimensional caricature radio hosts were painting of Patrick, basically accusing him of being in cahoots with a brutal rapist to continue torturing the victim’s family long after the crime. But Healey needed to figure out a way to bring this message to the wider public. She cut an ad harping not only on Patrick’s relationship with LaGuer, but on the fact that he dissembled when first confronted about it. This had the double effect of energizing her supporters while at the same time demoralizing Patrick’s constituency, shaken by the obvious discrepancies between his early statements on the case and the letters and financial contributions he later admitted to.

New polling numbers came out showing Healey pulling slightly ahead of Patrick among male voters, but still trailing significantly among women. That is when she made the fateful mistake of seizing on a Patrick’s on-camera statement that LaGuer “is eloquent and he is thoughtful.” Healey made it the centerpiece of her now-famous ad in which a woman enters a dimly lit parking garage. The tag line was, “Have you ever heard a woman compliment a rapist? Deval Patrick—he should be ashamed, not governor.”

Calculated to work the same magic with women voters as the incessant harping on the LaGuer connection seemed to be having among men, the ad backfired. It coincided with a report in the Boston Herald , widely assumed to be a Healey plant, insinuating that Patrick helped shield his brother-in-law from registering as a sex offender, prompting Patrick to give an impassioned statement ripping into what he called the “pathetic” tactics of his opponent, adding, “This is the politics of Kerry Healey and it disgusts me and it has to stop.” The bleeding for Patrick started to abate and the following week new polls came out showing him regaining a comfortable lead and more than half the voters having an unfavorable view of the Republican.

Healey opportunistically hitched her wagon to a powder keg and it blew up in her face. But she isn’t the first person to have been burned by coming in contact with the case of Commonwealth v. Benjamin LaGuer. The reason is that from the day LaGuer was arrested on July 15, 1983, it has represented a gross miscarriage of justice perpetuated by people with agendas that were less about getting at the truth than about winning and losing. At any time in the last 23 years Conte, the district attorney, could have taken a fresh look at new evidence that continued to emerge. Instead, he continually dug in his heels, allowing a festering injustice to build to explosive proportions.

That might explain why the press never bought into Healey’s strategy of using LaGuer as a frightful caricature. The Boston Herald turned to John Silber to counter the initial savaging of Patrick for writing on LaGuer’s behalf. It then ran a Sunday edition headline that screamed: “Healey Is a Hypocrite.” The lieutenant governor failed to engender credibility during four years in office and now she was coming off as shrill, shallow and disingenuous. Too many people in Boston’s newsrooms understood that the case against LaGuer wasn’t as clean as Healey made it out to be.

Those familiar with the police reports and hospital records know that LaGuer’s arrest was predicated on a lie. The lead detective, Ronald Carignan, settled on LaGuer based on his race and ethnicity and the circumstance that he happened to be living next door when the crime occurred. Once Carignan became fixated on LaGuer, the victim, who steadfastly denied knowing who it was who attacked her, corroborated his suspicions after her daughter Elizabeth Barry, according to the police report, “told her mother that she was going to stay in the apt (sic) and put herself up as bait” in order to entice the perpetrator to return.

From there the lies kept multiplying. Three weeks after the arrest Carignan, who has since died, told the grand jury which indicted LaGuer that the victim, who had a history of mental illness, identified him by name, something she strenuously denied under oath at the trial. Carignan even suggested that the crime had occurred in LaGuer’s apartment and said the victim was unable to appear at the hearing, neglecting to mention that she had already been discharged from the hospital.

The whole history of the case is rife with misrepresentations, distortions and missed opportunities (See: “LaGuer Reconsidered”, Valley Advocate , August 17, 2006). One that stands out is that at trial Carignan testified that he recovered only one partial fingerprint from the scene of a crime that was said to have played itself out over eight hours. Eighteen years later, in November, 2001, the report emerged showing that in fact four full fingerprints were retrieved from the base of the trimline telephone, the cord of which was used to bind the victim’s wrists, and that they belonged to someone other than LaGuer. Those prints, which the commonwealth has since lost or destroyed, are the basis of the current challenge to the verdict.

If Patrick spoke to his advisors familiar with Worcester politics, perhaps including Worcester Mayor Tim Murray, when Leominster Mayor Dean Mazzarella started nipping at his heals, they would probably have said that the LaGuer case has been a radioactive part of the county’s political scene for more than two decades. Patrick erred badly when he tried to make the questions about his involvement go away by immediately caving in to Mazzarella’s demands for a public repudiation of LaGuer. He further damaged his campaign by claiming that he had done nothing more than issue a statement on the order of 15 years ago. Patrick should have put the full extent of his involvement with the case on the table right away, rather than allow himself to be caught flatfooted by the drip, drip, drip of new revelations.

Healey, in latching onto what she obviously saw as an opportunity for political gain, chose to paint an entirely one-dimensional picture of LaGuer as a vicious animal—a word used over and over on the talk radio circuit— condemned not only by a 1984 jury but again by a 2002 DNA test. LaGuer became a seemingly legitimate target for a fusillade of hateful invective taken to a fever pitch. She cast him as a repository for the loathing of an entire state. Even uttering the words “eloquent” and “thoughtful” in connection with LaGuer was an act worthy of condemnation. The raw emotional impact of Healey’s divisive strategy was intoxicating. But a simple Internet search would have showed her that LaGuer’s case is currently in the courts and that four highly reputable experts have concluded that the DNA result is easily attributable to contamination. One of them, Harvard geneticist Daniel Hartl, went so far as to write, “There is, in my opinion, ample reason for a full inquiry into this case, and I hope that the Supreme Judicial Court of the Commonwealth of Massachusetts will agree.”

In the end, their handling of the LaGuer case in the heat of a political campaign didn’t do much for either candidate’s reputation. Ironically, the person who may have benefited the most from having been turned into a household name is Benjamin LaGuer himself. For 23 years his constant plea has been for people to look closely at the evidence and to concentrate on the facts. His case is in the Supreme Judicial Court, and oral arguments will likely be in January. If the one-dimensional image of him as a craven sociopath influences the outcome, Healey will have done LaGuer a tremendous disservice. If, on the other hand, his notoriety prompts the public, the press and the judicial system to take the time to study the history of the case and the issues currently at stake, the events of the last few weeks can only help his cause.

Recommended Reading

Veteran Ben LaGuer

Let me finally return to Dwight Macdonald and the responsibility of intellectuals. Macdonald quotes an interview with a death-camp paymaster who burst into tears when told that the Russians would hang him. "Why should they? What have I done?" he asked. Macdonald concludes: "Only those who are willing to resist authority themselves when it conflicts too intolerably with their personal moral code, only they have the right to condemn the death-camp paymaster." The question, "What have I done?" is one that we may well ask ourselves, as we read each day of fresh atrocities in Vietnam—as we create, or mouth, or tolerate the deceptions that will be used to justify the next defense of freedom.

– Chomsky, The Responsibility of Intellectuals 1967

Words to Remember:

"Juris praecepta sunt haec: honeste vivere; alterum non laedere; suum cuique tribuere"(These are the precepts of the law: To live honorably; to hurt nobody; to render to every one his due.)

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." -Section 1 of the 14th amendment to the US Constitution

Never Forgotten; Sadly Missed

Lawrence King

GLBT Legends

Paul McMahon and Ralph Hodgdon in 2007

"If you want to be important -- wonderful. If you want to be recognized -- wonderful. If you want to be great -- wonderful. But, recognize that he who is greatest among you shall be your servant. That's a new definition of greatness." -Rev. Dr. Martin Luther King Jr.

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